Fishkin: Random Assemblies for Lawmaking? Prospects and Limits

James Fishkin’s contribution to the September 2017 workshop “Legislature by Lot” was titled “Random Assemblies for Lawmaking? Prospects and Limits”:

A randomly selected microcosm of the people can usefully play an official role in the lawmaking process. However, there are serious issues to be confronted if such a random sample were to take on the role of a full-scale, full-time second chamber. Some skeptical considerations are detailed. There are also advantages to short convenings of such a sample to take on some of the roles of a second chamber. This article provides a response to the skeptical considerations. Precedents from ancient Athens show how such short-term convenings of a deliberating microcosm can be positioned before, during, or after other elements of the lawmaking process. The article draws on experience from Deliberative Polling to show how this is both practical and productive for the lawmaking process.

Athens, corruption, Deliberative Polling, elections, minipublics, nomothetai, representative democracy, sortition

In arguing for short term “Delibertive Polls”, Fishkin offers three problems with long-term allotted chambers: (1) lack of technical expertise, (2) potential for corruption, and (3) not maintaining what he calls “the conditions for deliberation”.

The argument regarding the lack of technical expertise of the allotted is a standard – in fact, the standard – argument against sortition and is easily refuted. But in any case, it is hard to see how such an argument can be considered as supporting short-term allotted bodies over long-term allotted bodies. Clearly the shorter the term of a body is, the more it would be “dependent on experts”, lacking the time to contrast and examine their claims and thus form independent opinions. In fact, Fishkin’s argument is that shorter term bodies would not be required to have any technical expertise because the decisions they would be asked to make would be pre-arranged so that all the technical considerations have been pre-decided while the allotted are asked merely to apply tradeoff between “value laden options”. Fishkin thus supports shorter term bodies because they are more easily constrained. They allow – indeed, they require – “democratic” settings in which the organizers present to the allotted prescribed options and force them to select between those based on prescribed considerations.

The corruption argument – that “there is a serious risk that efforts to bribe or promise later employment to members of the sample would distort the deliberations” – is also a standard one. In the context of advocating for short-term allotted bodies, it involves the implicit claim that the elites organizing the bodies – as Fishkin would have it, prescribing the options and the information presented to the allotted – are less susceptible to corruption than the allotted themselves. This, of course, would not be true even when considering a straight envelopes-with-cash-under-table type exchanges. But considering the fact that corruption is normally much more an affair of cooptation rather than straight-forward purchase, it is clear that the elites are much more corruptible (or inherently corrupt, i.e., representing narrow interest) than the allotted.

Finally, Fishkin likes short-term bodies because with those he can “maintain the condition of deliberation”. By this he means simply that he can control the setting decisions are arrived at. Left to do as they see fit, who knows what the allotted might do? Rather than “engage in mutually respectful and moderated small-group discussions, and carefully work through an agenda of choices ensuring that the pros and cons of each choice have gotten a hearing” they may have “individual meetings, caucuses, efforts at coalition building or even caucus or party formation, and meetings with lobbyists, staff, and constituents”. This, of course, is unacceptable.

In short, for Fishkin long-term bodies run the risk that they wield real power and take decisions that are outside the range considered acceptable by the organizing elites. His Deliberative Polling procedure is a formidable defense against this “serious issue”.

One Response

  1. I agree with Fishkin that organising elites have a key role to play in decision making by allotted juries and would argue that elections are essential in order to ensure that their role is a democratically legitimate one. In 4th century democracy, the advocacy role was always undertaken by elite orators and that is the only working precedent that we have for legislative decision making by allotted bodies. The nomothetai are the template for Fishkin’s DPs and the only error he makes is insisting on supplementing jury voting with small-group deliberation, on account of his wish to curry favour with Habermasian deliberative democrats (although he insisted to me in a private communication that he is not a Habermasian).


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